Optional Protocol on the involment of children in armed conflict to the Convention on the Rights of the Child

30-09-2000 Article, International Review of the Red Cross, No. 839, by Daniel Helle

Daniel Helle is a member of the Legal Division of the International Committee of the Red Cross.

Pursuant to five sessions held in preceding years and two weeks of negotiations in the period of 10-21 January 2000, the Inter- Sessional Open-Ended Working Group of the United Nations Human Rights Commission adopted the text of Draft Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. [1 ] It was formally presented to the Commission on Human Rights in April 2000, and will be forwarded through ECOSOC to the General Assembly for formal adoption in June 2000. The Draft Protocol will thereafter be open to ratification, and will enter into force three months after it has been ratified by ten States.

The present paper provides a brief overview of the background to the development of the new Protocol, and examines the first four articles contained therein in the light of other provisions of international law and the position adopted by the International Red Cross and Red Crescent Movement. These four articles set out the main substantive standards regulating the recruitment and participation of children in hostilities, while the remaining provisions can be considered as dealing more with measures of implementation or procedural issues.

Background

Aside from the general protection provided to children through general human rights and humanitarian law instruments, children are also entitled to the protection provided by the 1989 Convention on the Rights of the Child (CRC). This instrument has been ratified by nearly all States in the world. [2 ] Of particular relevance to the protection of children affected by armed conflict is Article 38 of the Convention, which stipulates that:

States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.

States Parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities.

States Parties shall refrain from recruiting any person who has not attained the age of 15 years into their armed forces. In recruiting among those persons who have attained the age of 15 years but who have not attained the age of 18 years, States Parties shall endeavour to give priority to those who are oldest.

In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, Sta tes Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.

From the very start, Article 38 was subject to considerable criticism, for two reasons. First, it is the only provision of the Convention departing from the general age limit of 18 years, in spite of the fact that it deals with one of the most dangerous situations that children can be exposed to armed conflict. Second, with respect to the prohibition against recruitment and participation, it largely confined itself to repeating Article 77 of Protocol I additional to the Geneva Conventions, applicable in international armed conflict. In so doing, it not only brought nothing new, but could also detract attention from the stronger standard contained in Protocol II additional to the Geneva Conventions, which provides a more absolute and comprehensive prohibition for non-international armed conflict. [3 ] Against this background, and in line with a growing awareness and concern within the international community of the severe plight of children affected by armed conflict, an initiative was taken within the United Nations system only a few years after the entry into force of the CRC to raise the minimum age for recruitment and participation in hostilities to 18 years.

This initiative was largely in common with the position adopted by the International Red Cross and Red Crescent Movement, which in 1993 initiated the development of a plan of action aimed at developing further the Movement’s existing activities in favour of children. [4 ] The 1995 Plan of Action enounces two commitments, the first of which is “to promote the principle of non-recruitment and non-participation in armed conflict of children under the age of 18 years”. [5 ] That sa me year, the 26th International Conference of the Red Cross and Red Crescent in a resolution recommended “that parties to conflict take every feasible step to ensure that children under the age of 18 years do not take part in hostilities”. [6 ]

Along with many other organizations and States, the ICRC expressed support for the development of an optional protocol to the CRC. It has made its view known in international fora (through statements at the UN Commission on Human Rights and the General Assembly) and has participated actively in the drafting process, notably by preparing a comprehensive document presenting the position of the ICRC on some of the key issues under consideration. [7 ]

Content and evaluation of some core provisions of the Optional Protocol

The content of some provisions of the Optional Protocol is presented below, together with a brief analysis and evaluation of the issues addressed.

Article 1

States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.

This must be considered as the most important provision of the new draft Protocol. The raising of the age limit for participation in hostilities from 15 to 18 years represents a clear improvement of the present protection provided by international law, and reinforces the current trend to shield all children from the horrors of armed conflict, and in particular from participation in hostilities. Other instruments reflecting this trend are the 1990 African Charter on the Rights and Welfare of the Child and the 1999 International Labour Organisation Convention (182) on the Prohibition of and Immediate Action for the Elimination of the Worst Forms of Child Labour.

In practical terms, the new standard should also help prevent the participation by children under the age of 15 years in hostilities, for whereas military commanders might have claimed in the past that such children in their ranks were in fact 15 years old, and only looked younger than their real age (for instance owing to long-term malnutrition), it will at least be evident hereafter that they are not 18 years old.

As regards the scope of the obligation contained in Article 1, two weaknesses must, however, be noted. The first relates to the nature of the obligation imposed on States, which is one of conduct rather than of result. According to the provision, States have a duty to “take all feasible measures to ensure” that participation of children does not occur, a wording which is largely in common with the corresponding text of Protocol I additional to the Geneva Conventions. [8 ] It would have provided children with better protection if States had undertaken to “take all necessary measures” to this end or, even better, if they had a duty to “ensure” that such participation does not take place. It is to be hoped that the Committee on the Rights of the Child will apply a strict interpretation when reviewing whether States have indeed taken all “feasible measures” towards the stated objective.

The second weakness lies in the extent of the protection provided to children against being involved in hostilities. According to the provision, they are protected against taking “direct part in hostilities”. As noted above, this text is weaker than the corres ponding clause in Additional Protocol II, which precludes any participation by simply stipulating that children shall not be allowed to “take part in hostilities”.

The scope of this article does not allow for a detailed review of various legal terms utilized to designate and distinguish between various forms of participation in hostilities. Nonetheless, the following examples of indirect participation in hostilities, which the new Protocol does not seem to prohibit — namely “to participate in military operations such as gathering information, transmitting orders, transporting ammunition and foodstuffs, or acts of sabotage” [9 ] — should serve to demonstrate that children may still be exposed to considerable dangers on the battlefield even after the Protocol has entered into force. Needless to say, the involvement of children in such activities on the front line puts them at serious risk of physical injury and emotional trauma, which may often not be much less than if they were to take “direct part” in hostilities.

It may be noted that an alternative wording, inspired by the Rome Statute of the International Criminal Court, would have provided considerably better protection. However, it failed to achieve consensus in the Working Group and thus was not retained. [10 ]

Article 2

States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.

The raising of the age limit from 15 to 18 years for compulsory recruitment also represents a clear improvement of the present situation. The current protection provided by Article 38, paragraph 3, of the Convention on the Rights of the Child and Article 77, paragraph 2, of Additional Protocol I against forced recruitment of childr en between 15 and 18 years of age is weak, since States Parties “shall endeavour” only to give priority to those who are oldest.

Article 2 constitutes an important corollary to the prohibition against participation in hostilities. Indeed, wherever children have been recruited and have received military training, it will be tempting to make use of their skills in the event of conflict, particularly if they are incorporated in regular military units and the crisis is of such a scale that every available capacity is required. To preclude the presence of children in military units is therefore an important safeguard to avoid their involvement in hostilities.

It has on occasion been contended that according to international humanitarian law, a child is deemed to be a person under the age of 15 years, and even that it would be contrary to this body of law to consider a person under the age of 18 years as a child. It is rightly observed that international humanitarian law, unlike human rights law, does not contain any definition of children, a fact that is attributable to the lack of a common understanding among delegates during earlier negotiations on the relevant age limit. In order to reach a consensus among them, any specification as regards the age limit was therefore omitted in the various legal instruments.

It would be wrong, however, to deduce from existing humanitarian law that it precludes considering persons above the age of •15 years as children. It may be noted, for instance, that the Fourth Geneva Convention utilizes a variety of age limits when providing special protection for children, depending on the specific needs that the law seeks to address in different contexts. Thus, the provisions range from new-born babies (maternity cases), children under the age of seven years (prescribing access for them and their mothers to hospital and safety zones), 12 years (wearing of identity discs to preserve their identi ty in case they are separated from their parents, for instance as a result of bombardment and flight), 15 years (for instance for the provision of relief supplies and child welfare facilities), to 18 years (protection against compulsory labour and against the death penalty).

On a textual basis, it can be observed that when the law uses terms like “children under 15”, this implies that there are also children over 15. As regards preferential treatment for children above that age, the law uses terms such as “persons under 18 years of age”. This wording avoids the implication that there are children over the age of 18, but does not rule out considering persons below that age as children. Furthermore, Article 77 of Protocol I, entitled “Protection of children”, includes the protection of persons under 18 years of age. Similarly, the Commentary on the Fourth Geneva Convention published by the ICRC lists the provisions specific to persons under the age of 18 years among the provisions prescribing preferential treatment for children. [11 ]

When the term “children” is being utilized in a provision without any age specification, the relevant age must accordingly in each specific case be determined in the light of the interest protected, and the conclusion reached will be relevant for the specific provision being examined only. To adopt a general notion of “child” in the absence of a definition, as being relevant only those under 15 years of age, would be detrimental to the interest of the child and thus not in conformity with the spirit underlying international humanitarian law. [12 ]

Article 3

States Parties shall raise the minimum age in years for the voluntary recruitment of persons into their national armed forces...

States Parties which permit voluntary recruitment into their national armed forces under the age of 18 shall maintain safeguards to ensure (...) that:

such recruitment is genuinely voluntary (...) is done with the informed consent...;

such persons provide reliable proof of age...

The requirement to raise the age in paragraph 1 does not apply to schools operated by or under the control of the armed forces of the States Parties...”

This provision raises the minimum age for voluntary recruitment by at least one year, in accordance with the declaration to be submitted by States when becoming party to the new Protocol. In other words, the minimum age for voluntary recruitment would hereafter be 16 years.

While raising the present age limit of 15 years is in itself a welcome development, Article 3 also weakens considerably the protection provided by Article 2, and in fact the entire Protocol. This is so, in particular, because it may be difficult to determine in practice whether child soldiers have been voluntarily recruited or not.

The safeguards that have been included to ensure that recruitment is indeed voluntary, and that no child under the minimum age is recruited, are positive features of the provision, but may be difficult to implement in practice. For instance, in a number of developing countries affected by armed conflict it may be questionable whether the requirement to provide “reliable proof of age” can be satisfied, given that birth registration systems often hardly exist there.

In addition, the protection provided by the first paragraphs of Article 3 suffers from an important exception, since the requi rement to raise the age for voluntary recruitment does not apply to schools operated by or under the control of the armed forces. The lower age set for voluntary recruitment and the exemption made for military schools were motivated by many delegations as being necessary to secure a sufficient number of applicants, possessing the required profile, for the needs of their national armies. In this regard, it was emphasized that a system based on voluntary service by persons under 18 years was preferable to a system of compulsory service for those above that age, and that military schools often represent one of the few available opportunities for youths living in poor countries to acquire a higher education.

While such concerns are understandable, it would have been desirable for voluntary recruitment and military education to have been secured through alternative means, for instance by providing career prospects and military instruction through institutions which were not considered as an integral part of the State’s armed forces. The wording of the provision allows for the possibility of circumventing the age limits set for recruitment, as well as for considering such pupils as members of the armed forces, and thus as military targets. Evidently, this departure from the “straight 18” objective, which was pursued by many other delegations, seriously weakens the prospects of preserving children from being involved in armed conflict in the future.

Article 4

Armed groups, distinct from the armed forces of a State, should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.

States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.

The application of the present article under this Protocol shall not affect the legal status of any party to an armed conflict.

According to this provision, non-State entities are not allowed to recruit children, whether forcibly or voluntarily, nor to let them participate in hostilities, be it in a direct or indirect manner.

The provision is positive in that it indicates the willingness of States to regulate the behaviour of non-State entities, and thus also to address situations of non-international armed conflict. The ICRC strongly supported including the issue of non-State entities in the new Protocol, given that the involvement of children in non-international armed conflicts is just as deadly and traumatizing for the children concerned as in international ones. The fact that the presence of child soldiers seems to be particularly widespread in internal armed conflicts also underscores the need to address these situations.

However, Article 4 has been drafted in a way which leaves doubts as to how effective it will be to prevent the recruitment and participation of children in situations of internal armed conflict, mainly because the wording “should not”, as opposed to “shall not”, seems to impose a moral, as opposed to a legal, obligation under international law. In this regard, the wording chosen seems to be motivated by the concern of many States not to depart from the classical approach of international human rights law, according to which the broad rule is that only States have an obligation under human rights law, whereas the behaviour of non-State entities is to be regulated by domestic law. [13 ] However, the criminal repression under domestic law which Article 4 pro vides for is likely to have little deterrent effect. First, because those who take up arms against the lawful government of a country already expose themselves to the most severe penalties of the law, so that a threat of (additional) penal sanctions for recruiting minors may be of only marginal concern, and second, because the capacity of governments to enforce their domestic law is very limited in many contemporary situations of non-international armed conflict.

Notwithstanding the concern of governments not to add to any confusion as to the subjects responsible under international human rights law, it seems that it would have been feasible to provide for a direct legal obligation of non-State entities under the new Protocol. One possibility would have been to define recruitment and use in hostilities of persons under the age of 18 years as a crime under international law. Another would have been to incorporate part of international humanitarian law in the Protocol, so that the legal responsibility of non-State entities was limited to situations of armed conflict (this could have been done, for instance, by drafting a text such as “In situations covered by common Articles 2 and 3 to the Geneva Conventions, persons under the age of 18 years shall neither be recruited into the armed forces or other armed groups, nor allowed to take part in hostilities”). It may be argued in this regard that Article 38 already represents a partial incorporation of international humanitarian law, and that the Protocol’s subject-matter — armed conflict — would have justified this approach. Nonetheless, States were not prepared to take this step during the negotiations. The text therefore remains in line with traditional human rights law, a legal regime that is less suitable than humanitarian law (which is also legally binding on non-State entities) would have been to address the problems concerned.

Lastly, another cause for doubts as to the effectiveness of Article 4 is the fact that the obligation imposed on non-State entities differs from, and is wider than, that imposed on States. The provision may perhaps be useful as a basis for advocacy vis-à-vis armed groups, but they may also consider the Optional Protocol as containing a “double standard” and consequently that the moral force of the norm imposed upon them is weak. Accordingly, it is uncertain whether non-State entities will feel bound by and thus respect the provision. It may be observed in this regard that humanitarian law has always been based on the premise of equal obligations on all sides, and that this argument is often put forward when seeking to induce parties to conflict to implement the law.

Concluding comments

In view of the tragic situation of children affected by armed conflicts, and in particular the all too frequent cases where they have been coerced or allowed to take part in hostilities, the development of an optional protocol to the Convention on the Rights of the Child is a welcome initiative.

Evidently, the draft is not as strong as many would have hoped, or indeed is considerably weaker, and it is to be hoped that the Committee on the Rights of the Child will compensate for some of the shortcomings of the text by making a strict interpretation of it. It is promising in this respect that the Committee seems to be of the opinion that the CRC applies as a whole to all children, so that for instance the best interest of the child, the right to life and the right to respect for family life will also apply to children who are at risk of being recruited or of participating in hostilities, or have been in that plight.

Despite the weaknesses noted above, the new Protocol does represent an undeniable progress and serves to consolidate existing international law on the protection of children against recruitment and participation in hostilities. It is worth noting that the Protocol imposes a duty on States to take measures to ensure not only the effective implementation of the provisions discussed above, but also the demobilization of child soldiers and their rehabilitation and reintegration into society. It furthermore provides for international assistance to this end, which may often be required for effective implementation of the Protocol. Indeed, armed conflicts often result in devastated societies in which children at risk may be tempted to join armed forces or armed groups as a source of income and respect, and which can do little to restore them to a normal life unless specific assistance is given for that purpose.

In conclusion, it is to be hoped that the new Optional Protocol will rapidly be universally ratified, as the 1989 Convention on the Rights of the Child almost has been already, and will help in future to effectively address the plight of children caught up in war.

Notes

1 Text reproduced on pp. 810 (in French) and on pp. 817 (in English).

2 Exception: Somalia and the United States of Ameri ca.

3 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, Art. 4 (excerpts):

Article 4 - Fundamental Guarantees

3. Children shall be provided with the care and aid they require, and in particular: (…)

(c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities (…).

4 The Plan of Action was prepared on the basis of a consultative process within and outside the Movement, and endorsed by the Council of Delegates in 1995.

5 The second commitment is “to take concrete action to protect and assist child victims of conflict”. Six objectives with corresponding tasks are outlined to implement these commitments.

As regards the first commitment, National Societies are inter alia asked to persuade their governments to promote this idea internationally and to adopt appropriate national legislation. The ICRC and the International Federation are requested to supply National Societies with relevant documents, to make their view known in international fora and to actively participate in the UN Working Group established to draft an Optional Protocol to the Convention on the Rights of the Child. Other objectives are to identify children at risk of becoming soldiers and provide them with alternative activities, and to raise awareness in society not to allow children to join armed forces or groups.

The components of the Movement are also asked to address psycho-social as well as physical needs of children. Separate sets of suggest ions are made for children living with families and those who are unaccompanied. Finally, the Plan of Action contains the requests to advocate in favour of children who participated in armed conflict in order to make society and the local community accept these children.

The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority to those who are oldest.

10 The alternative wording reads in relevant parts “shall not be used (…) to actively take part in hostilities”.

The ICC Statute lists among the war crimes “Conscripting or enlisting children under the age of fifteen years (…) or using them to participate actively in hostilities”. The understanding under which del egations eventually adopted “using” and “participate actively” in Rome was “in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer’s married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology.” See Michael Cottier, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article , Nomos Verlagsgesellschaft, Baden-Baden, p. 261, with further references.